Prowess International Pvt. Ltd vs Action Ispat & Power Pvt. Ltd

Prowess International Private Limited ...Appellant

Vs.

Action Ispat & Power Private Limited ...Respondent

Present: For Appellant: - Mr. Akhilesh Kr. Srivastava, Advocate with Ms. Suhita Mukhopadhaya, PCS.

For Respondent:- Mr. Milan Singh Negi, Ms. Varsha Banerjee and Mr. Kunal Godhwani, Advocates.

ORDER

26.03.2018 ─ This appeal has been preferred by the Appellant against

judgment dated 15th March, 2017 passed by the Adjudicating Authority

(National Company Law Tribunal), Principal Bench, New Delhi, whereby

and whereunder application preferred by the Appellant under section 9

of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as

"I&B Code") has been rejected for the grounds mentioned therein.

2. The defective appeal was preferred by the Appellant after delay of

more than six months on 22nd September, 2017 without any application

for condonation of delay. When it was pointed out, the Appellant preferred

an application for condonation of delay and taken plea that there is a

delay of only two days.

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3. On notice, learned counsel for the Respondent has appeared and

opposed the prayer. It was pointed out that the judgment was delivered

by the Adjudicating Authority on 15th March, 2017 in open court in

presence of learned counsel for the Appellant and in spite of the same,

the Appellant did not choose to apply for certified copy, and application

for certified copy was filed for the first time on 18th August, 2017 i.e. after

five months, which was prepared immediately on 21st August, 2017 and

handed over to the Appellant. Thereafter, the defective appeal was

preferred on 22nd September, 2017.

4. From the record, we find that the Appellant has not explained as

to what action the Appellant had taken between 15th March, 2017 and

18th August, 2017 i.e. between the day of judgment and the day the

application for certified copy was filed.

5. Learned counsel for the Appellant submitted that the copy of the

impugned order was not forwarded to the Appellant. However, it is

accepted that the impugned order was passed on 15th March, 2017 in

presence of the counsel for the Appellant.

6. It is desirable to refer the relevant provisions under which appeals

can be preferred before this Appellate Tribunal.

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7. Against an order passed by the Tribunal under Companies Act, an

appeal is maintainable under Section 421 of the Companies Act, 2013,

which reads as follows:

"421. Appeal from orders of Tribunal. ─(1) Any

person aggrieved by an order of the Tribunal may prefer

an appeal to the Appellate Tribunal.

(2) No appeal shall lie to the Appellate Tribunal from an

order made by the Tribunal with the consent of parties.

(3) Every appeal under sub-section (1) shall be filed

within a period of forty-five days from the date on which

a copy of the order of the Tribunal is made available to

the person aggrieved and shall be in such form, and

accompanied by such fees, as may be prescribed:

Provided that the Appellate Tribunal may

entertain an appeal after the expiry of the said period

of forty-five days from the date aforesaid, but within a

further period not exceeding forty-five days, if it is

satisfied that the appellant was prevented by

sufficient cause from filing the appeal within that

period.

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(4) On the receipt of an appeal under sub-section (1), the

Appellate Tribunal shall, after giving the parties to the

appeal a reasonable opportunity of being heard, pass

such orders thereon as it thinks fit, confirming,

modifying or setting aside the order appealed against.

(5) The Appellate Tribunal shall send a copy of every

order made by it to the Tribunal and the parties to

appeal."

8. As per the said provision, if an appeal is preferred under Section

421 of the Companies Act, 2013, the Appellate Tribunal counts the period

of limitation from the date on which a copy of the order is made available

by the Tribunal in terms of sub-section (3) of Section 421 of the

Companies Act, 2013.

9. However, for preferring appeal under Section 61 of the 'I&B Code'

against an order passed by the 'Adjudicating Authority' provision for

counting the period of limitation is different. The provision is as follows:

"61. Appeals and Appellate Authority. ─ (1)

Notwithstanding anything to the contrary contained

under the Companies Act, 2013 (18 of 2013), any

person aggrieved by the order of the Adjudicating

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Authority under this part may prefer an appeal to the

National Company Law Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed

within thirty days before the National Company Law

Appellate Tribunal:

Provided that the National Company Law

Appellate Tribunal may allow an appeal to be filed

after the expiry of the said period of thirty days if it is

satisfied that there was sufficient cause for not filing

the appeal but such period shall not exceed fifteen

days.

(3) An appeal against an order approving a resolution

plan under section 31 may be filed on the following

grounds, namely:--

(i) the approved resolution plan is in

contravention of the provisions of any law for

the time being in force;

(ii) there has been material irregularity in

exercise of the powers by the resolution

professional during the corporate insolvency

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resolution period;

(iii) the debts owed to operational creditors of

the corporate debtor have not been provided

for in the resolution plan in the manner

specified by the Board;

(iv) the insolvency resolution process costs

have not been provided for repayment in

priority to all other debts; or

(v) the resolution plan does not comply with

any other criteria specified by the Board.

(4) An appeal against a liquidation order passed

under section 33 may be filed on grounds of material

irregularity or fraud committed in relation to such a

liquidation order."

As per the aforesaid provision, the appeal is required to be filed

within thirty-days, means within thirty-days from the date of knowledge

of the order against which appeal is preferred.

10. In the present case, as Appellant had knowledge of the impugned

order as on the date of pronouncement of the said order i.e. 15th March,

2017. It is not the case of the Appellant that its Lawyer has not informed

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of the order passed by the Adjudicating Authority. The ground as taken

in the application for condonation of delay being not satisfactory, it is fit

to be rejected. We accordingly, reject the application for condonation of

delay and dismiss the appeal being barred by limitation. I.A. No. 292 of

2018 stands disposed of.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 223 of 2017